Note to EPA: “Don’t Touch My Junk”

Published November 29, 2010

In addition to being a sucker punch to this country’s consumers and the entire economy, the U.S. Environmental Protection Agency’s massive new assault on large industries by forcing them to limit their greenhouse gas emissions is illegal and unconstitutional. And it is an insult to the American people.
On November 15, Obama’s EPA issued a 100-page, highly technical “guidance” document proposing that as of January 2, 2011, large sources of greenhouse gas emissions—such as power plants, steel operations, and petroleum refineries—be required to obtain preconstruction and operating permits limiting their greenhouse gas emissions and to install the “best available” technology to do so.
Comments on these new rules are due on or before December 1, 2010, a 14-day period interrupted by the four-day Thanksgiving holiday. And EPA says it will review only comments on technical aspects of the new rule.
Previously, no such permits were needed, and no greenhouse gas limits existed. It is widely agreed such new rules will drive up the costs of electricity, iron and steel, gasoline, and anything else produced by large operations, with these costs passed along to consumers already staggered by a jobless “recovery” from the recession.
The delays already inherent in the permit process, which is carried out by state environmental authorities, will be increased exponentially, as deficit-plagued states will face vast new staffing requirements they can ill afford.
Under our system of government, Congress passes laws and the Executive branch—here the EPA—implements and enforces them. Congress often sketches the outline of the laws it passes and then authorizes Executive branch agencies to fill in the blanks. But there are limits on agency powers. The agency involved, courts have repeatedly held, must limit its actions to implementing the statute Congress passed. The agencies are prohibited from expanding the reach of the statute or rewriting it to suit the their own preferences.
Also, enactment of such regulations is always subject to advance notice to the public and provision of a lengthy period of time—often months—in which to file comments on the proposal. The agency then reviews the comments, responds to them, and sometimes revises the proposed regulations before making them final.
Congress established an exception to the strict notice-and-comment requirement, however, for agency documents called “guidance.” This exception applies when the pronouncement is merely explanatory. As one judge described it, these pronouncements “simply state what the administrative agency thinks the statute means.” And many courts have held for many decades that agency documents creating substantive new legal obligations must go through the rigorous notice-and-comment period.
Obama’s EPA calls its proposed new permit requirements mere “guidance.” But it undoubtedly creates substantive new legal obligations—permits are legally binding contracts between the government and the particular industrial operation involved. So EPA is thumbing its nose at decades of established law by unleashing a new regulatory regime without any kind of meaningful notice and opportunity for public comment.
Obama’s EPA is flouting the law in an unprecedented, blatantly illegal fashion.
These actions are unconstitutional. The notice-and-comment provisions were put in place by Congress to fulfill the Constitutional requirements of procedural due process—the American public and the industries to be regulated may not constitutionally be deprived of their property without notice and a meaningful opportunity to be heard. A 14-day period, minus the holidays, is totally meaningless and violates due process.
This regulatory cram-down by EPA is insulting to the American people. Increasingly, the public doubts—for good reason—whether greenhouse gases such as carbon dioxide are causing global warming, and the people have not hesitated to express those doubts to politicians. It is also increasingly obvious that at least some of the science purporting to support the theory of manmade climate change has been falsified. For these reasons and others, Congress this year refused to pass cap-and-trade legislation, after a public outcry against it.
So EPA has decided to impose the cap without the trade.
Obama’s EPA is punishing the American public for having the nerve to speak out. This much is clear from EPA’s vicious and premeditated attempts to limit comments to technical issues in a 100-page document and to require submission by December 1.
EPA may be refusing to read comments other than technical ones, but it can’t refuse to accept them. Those outraged by Obama’s out-of-control agency can submit comments in three ways.
First, comments can be submitted online at, though this process is complicated. Second, comments can easily be submitted by email at [email protected]. Third, comments can be sent by fax to 202-566-9744. In all cases, comments should reference Docket ID No. EPA-HQ-OAR-2010-0841. Comments don’t have to be long or complicated; it is enough if they are heartfelt.
Ultimately, the courts will untangle the legal issues involved here. Meanwhile, it’s time for another “don’t touch my junk” moment.
Maureen Martin ([email protected]), an attorney, is senior fellow for legal affairs at The Heartland Institute.